Briefing Paper: The Iraqi Special Tribunal

Rules of Procedure and Evidence Missing Key Protections

The newly adopted Rules of Procedure and Evidence of the Iraqi Special Tribunal are lacking several important fair trial protections. Human Rights Watch wants to see officials of the former Iraqi government responsible for serious human rights crimes brought to justice. We anticipate such officials will be charged with committing horrific crimes, including war crimes, crimes against humanity, and genocide. (Many of these crimes have been documented by Human Rights Watch in its reports “Bureaucracy of Repression: The Iraqi Government in Its Own Words” and “Genocide in Iraq: The Anfal Campaign Against the Kurds.”) However, for justice to be done, the trials must be fair. Only through fair trials: can the Iraqi people as well as people worldwide know the true nature of those crimes; can there be justice for the victims and their families; and can Iraq help to ensure that the brutal crimes of the past regime are never repeated. If Iraq is to lay a foundation as a country committed to the rule of law and make a break from the abusive practices of the past regime, it is crucial that trials before the Iraqi Special Tribunal (“the Tribunal”) adhere to internationally recognized fair trial standards.

While Human Rights Watch has a number of concerns with the Rules of Procedure and Evidence (“the Rules”), the following are the most serious concerns. Human Rights Watch notes that since draft rules were previously circulated in June 2004, the Rules have been revised to become less protective of fair trial rights. Human Rights Watch has separately expressed its concerns with the Statute of the Iraqi Special Tribunal (“the Statute”) in a memorandum issued in December 2003 (see “Memorandum to the Iraqi Governing Council on ‘The Statute of the Iraqi Special Tribunal’”).

No requirement of proof beyond a reasonable doubtThe Rules do not require that guilt be proven “beyond a reasonable doubt,” as is required by international human rights law. Existing Iraqi law, which will supplement the Statute and Rules, only requires that the Tribunal be “satisfied” of guilt by the evidence presented (Law on Criminal Proceedings with Amendments, No. 23 of 1971, para. 213(A)).

The Iraqi Special Tribunal should require proof of guilt beyond a reasonable doubt, and not a lower standard. Proof beyond a reasonable doubt is required by the International Criminal Court, the International Criminal Tribunal for Rwanda (ICTR), and the International Criminal Tribunal for the former Yugoslavia (ICTY) (Rome Statute, Art. 66(3); ICTY Rules of Procedure and Evidence, Rule 87(a); ICTR Rules of Procedure and Evidence, Rule 87(a)). Proof beyond a reasonable doubt has also been interpreted to be required under the fair trial provisions of the International Covenant on Civil and Political Rights, to which Iraq is a party (see Human Rights Committee, General Comment 13 (on article 14) (“[b]y reason of the presumption of innocence… [n]o guilt can be presumed until the charge has been proven beyond reasonable doubt.”)).

Without evidence of guilt beyond a reasonable doubt, the defendant must not be convicted. Trials that convict persons short of this standard are likely to bring the legitimacy of the Tribunal into question. Moreover, any lower burden of proof is especially troubling because the Iraqi Special Tribunal is empowered under its Statute to impose the death penalty. Human Rights Watch in all circumstances opposes the use of the death penalty, a form of punishment that is inherently cruel and inhumane.

Trials in absentia allowedRule 56 of the Rules of Procedure and Evidence provides for trials in absentia pursuant to Iraqi law. That law provides for trials in absentia for both defendants who have not yet been arrested and those who were taken into custody but then escaped (see Iraqi Criminal Proceedings Law with amendments, No. 23 of 1971, para. 135).

While there is no absolute prohibition on trials in absentia under international law, trials in absentia compromise the ability of an accused to exercise his or her rights to a fair trial under the International Covenant on Civil and Political Rights, including the rights to adequately prepare a defense, to communicate with counsel of choice, and to examine witnesses (Art. 14). The International Criminal Court and the Yugoslav and Rwandan tribunals all explicitly prohibit trials in absentia (see Rome Statute, Art. 63; ICTY Statute, Art 21(4)(d); ICTR Statute, Art. 20(4)(d)). While trials in absentia are permissible, for example, where an accused refuses to appear for trial, or, where he disrupts the trial (Rome Statute, Art. 63(2)), Iraq law also permits trials in absentia more generally – for example, where a defendant has not been apprehended and has not appeared before the tribunal. Under such circumstances, trials in absentia would seriously undermine the fairness of proceedings at the Special Tribunal.

The rights to counsel and to remain silent underminedBoth the right to counsel and the right to remain silent are not available to the accused at a sufficiently early stage to ensure fair legal proceedings. Iraqi Special Tribunal Rule 46 provides for a right to counsel and to be informed of the right to remain silent, but only upon questioning by a Tribunal investigative judge. This leaves an accused vulnerable to interrogations without counsel, and to being interrogated without knowing of the right to remain silent prior to questioning by a Tribunal investigative judge.

Many so-called “high value detainees” in Iraq were taken into custody by the United States before the Tribunal was fully functional. At least from the time when “legal” custody was transferred from the United States to the Iraqi Interim Government until questioning by a Tribunal investigative judge, these detainees were vulnerable to interrogation without counsel and without being informed of the right to remain silent. The right to counsel and right to remain silent are basic fair trial protections: undermining them may jeopardize a prosecution. It will be critical for the Iraqi Special Tribunal to ensure that any information obtained in violation of a defendant’s rights not be used as evidence against that person.

RECOMMENDATIONSHuman Rights Watch recommends that the Rules of Procedure and Evidence of the Iraqi Special Tribunal be amended to:

provide for proof beyond a reasonable doubt;

prohibit trials in absentia (except for a defendant who has appeared and voluntarily absented himself from the trial process); and

provide that the right to counsel and right to remain silent attach at the earliest possible opportunity.